26.15S v Gloucestershire CC; L v Tower Hamlets LBC (2000) 3 CCLR 294, CA
It was arguable that a decision by a social worker should be equated with the decisions of other professional persons, involving a duty of care, despite the statutory context
Facts: the claimants asserted that they had suffered personal injury as a result of sexual abuse perpetrated by their foster fathers, when in local authority care, and that this resulted from the local authorities’ failure to exercise reasonable care and skill. The local authorities applied to strike out the claims for summary judgment.
Judgment: the Court of Appeal (Robert Walker, May and Tuckey LJJ) held that notwithstanding the statutory context, it was arguable that a duty of care in negligence existed: decisions of social workers in relation to individual children were capable of being equated with decisions of other professional people:
In my view, a number of strands of the relevant law to be derived from Barrett v Enfield and the cases which preceded it may be summarised as follows:
(a) depending on the particular facts of the case, a claim in common law negligence may be available to a person who claims to have been damaged by failings of a local authority who were responsible under statutory powers for his care and upbringing. In each of the cases before this court, the claims were sensibly limited to common law negligence claims.
(b) the claim will not succeed if the failings alleged comprise actions or decisions by the local authority of a kind which are not justiciable. These may include, but will not necessarily be limited to, policy decisions and decisions about allocating public funds.
(c) the borderline between what is justiciable and what is not may in a particular case be unclear. Its demarcation may require a more extensive investigation than is capable of being made from material in traditional pleadings alone.
(d) there may be circumstances in which it will not be just and reasonable to impose a duty of care of the kind contended for. Here again, it may often be necessary to conduct a detailed investigation of the facts to determine this question.
(e) in considering whether a discretionary decision was negligent, the court will not substitute its view for that of the local authority upon whom the statute has placed the power to exercise the discretion, unless the discretionary decision was plainly wrong. But decisions of, for example, social workers are capable of being held to have been negligent by analogy with decisions of other professional people. Here again, it may well be necessary to conduct a detailed factual enquiry.